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Unequal Justice: Trump's Supreme Takeover

If the president gets to appoint another SCOTUS judge, we'll be paying the price for decades to come.

In July 2018, a protest broke out outside the U.S. Supreme Court after President Donald Trump announced his nominee to replace outgoing Justice Anthony Kennedy.

In July 2018, a protest broke out outside the U.S. Supreme Court after President Donald Trump announced his nominee to replace outgoing Justice Anthony Kennedy. (Photo: Angel Padilla/Twitter)

Update: Since the publication of this column, tragedy has struck: Ruth Bader Ginsburg passed away on the evening of September 18 from complications of pancreatic cancer.

RBG was a champion not only of women's rights, but of civil liberties and equal protection for all Americans. Her death leaves a vacancy on the Supreme Court that President Donald Trump and Republican Sen. Mitch McConnell will try to fill with an ultra-rightwing ideologue. What was once just a theoretical threat to the future of the rule of law has now become a reality.

The Supreme Court will now become a central issue in the November election. Voters will have to decide if Trump and McConnell should be permitted to confirm Ginsburg's successor either before the election or during the lame-duck session that will follow, or whether the nation should wait until a new President and a new Congress are seated in January.

The original article, discussing Trump's new list of potential Supreme Court nominees, is below:

Donald Trump has announced yet another list of potential Supreme Court candidates, all but guaranteeing that American constitutional law will be reinterpreted dramatically and moved dangerously to the right if he's reelected.

"This list is teeming with individuals who have alarming anti-LGBTQ and anti-civil rights records, which should be disqualifying for any judicial nominee, let alone a nominee for the Supreme Court."
—Sharon McGowan, Lambda Legal

Unveiled on September 9, the new list consists of 20 doctrinaire conservatives, including Republican Sen. Ted Cruz of Texas, Tom Cotton of Arkansas, and Josh Hawley of Missouri. Also on the list are former Solicitors General Paul Clement and Noel Francisco; Assistant Attorney General Steven Engel, who currently heads the Office of Legal Counsel in the Department of Justice; and Christopher Landau, the U.S. ambassador to Mexico.

The new list marks the fourth time Trump has released a register of possible high-court nominees. The earlier editions were published in May and September 2016, and November 2017, and were prepared with guidance from the Heritage Foundation and the Federalist Society. The prior lists contained the Supreme Court's newest members, Neil Gorsuch and Brett Kavanaugh, demonstrating that the lists are not simply promotional devices designed to please Trump's base, but actual pathways to eventual elevation to the court.

Like the earlier lists, the new roster is overwhelmingly white and male, and by judicial standards, young, with an average age of 50. Among the new hopefuls are eight federal appeals court judges; two federal district court judges; one state supreme court judge; and Kentucky Attorney General Daniel Cameron, who is the most junior candidate at age thirty-four.

Leaving no doubt of his intention to install a conservative super-majority on the court, Trump declared in a September 9 press conference, "The 20 additions I am announcing today would be jurists in the mold of Justices Antonin Scalia, Clarence Thomas, and Samuel Alito." In fact, six of the candidates are former Thomas clerks.

Not surprisingly, the new catalog has progressives up in arms. "If there's one thing this president doesn't lie about," Nan Aron, president of the Alliance for Justice, told CNN in response to the list, "it's his eagerness to stack the courts with extremists prepared to carry out Republicans' conservative agenda."

Gay rights activists are particularly incensed by the new list. Sharon McGowan, legal director for Lambda Legal, blasted Trump's latest choices in a fiery statement, asserting:

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This list is teeming with individuals who have alarming anti-LGBTQ and anti-civil rights records, which should be disqualifying for any judicial nominee, let alone a nominee for the Supreme Court. Notably, the President's 'litmus test' for SCOTUS nominees seems to have demanded zealous opposition to abortion and common sense gun control measures, as well as an unrelenting commitment to destroying the Affordable Care Act and a deep hostility to LGBTQ equality. All of these positions are far outside of the mainstream...

McGowan singled out Fifth Circuit Court of Appeals Judges Kyle Duncan and James Ho and Ninth Circuit Judge Lawrence VanDyke for special condemnation, noting that VanDyke was deemed "not qualified" by the American Bar Association after Trump nominated him to the appellate bench in September 2019. "In sum," McGowan warned, "the nominees on this list [are] staggering and terrifying."

Excluding both Gorsuch and Kavanaugh, there are now 44 names on the four lists compiled by the president. And as terrifying as the latest iteration may be, the older lists contain even more dangerous lower-court judges whose presence on the Supreme Court would threaten to undermine the legal underpinnings of the New Deal and the civil rights movement.

According to several sources, Trump is "saving" Seventh Circuit Judge Amy Barrett, age 48, to replace Ruth Bader Ginsburg when the 87-year-old liberal stalwart eventually leaves the court. Trump appointed Barrett to the bench in 2017. She is a darling of the religious right, known for her opposition to abortion, Obamacare, fair-employment practices, and environmental regulation.

Also prominently in the running for a promotion is 58-year-old Eleventh Circuit Judge William Pryor. Pryor was nominated by George W. Bush, and was confirmed by the Senate only after an unsuccessful Democratic filibuster. As attorney general of Alabama, he blasted Roe v. Wade as "the worst abomination in the history of constitutional law," and condemned Miranda v. Arizona for preserving one of the "worst examples of judicial activism."

Pryor no doubt endeared himself to Trump last week, when he wrote the 6-4 majority opinion in a circuit court decision that upheld the constitutionality of a Florida law requiring felons to repay any court fines they had incurred as a result of their convictions in order to be eligible to vote. The GOP-controlled Florida legislature passed the law in response to an amendment to the state's constitution that voters had approved in 2018 to restore the voting rights of ex-felons.

The ACLU and other civil-liberties organizations claim the Florida statute amounts to a modern-day poll tax.

It's well past time for progressives and Democrats more generally to recognize the urgency of Supreme Court appointments, as the GOP has done for years. Supreme Court justices don't just leave their imprints on American life during the terms served by the presidents who nominate them. Their influence lasts for generations.

Under the Constitution, federal judicial appointments are for life. Since 1970, Supreme Court justices have served an average of 26.1 years. And according to a recent study published by the Harvard Business School, given increasing life expectancy in the U.S., the average tenure is expected to rise over time to 35 years.

At the same time, the average retirement age for Supreme Court justices has risen to 80, which both Ginsburg and Stephen Breyer, 82, have already exceeded. The members of the court's current conservative bloc are spring chickens by comparison. Clarence Thomas is 72, Chief Justice John Roberts 65, Samuel Alito 70, Gorsuch 53, and Kavanaugh 55.

If Donald Trump gets to appoint a single additional justice to the court, our children and our grandchildren will be paying an epic price for decades to come.

Bill Blum

Bill Blum

Bill Blum is a former administrative law judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam and a contributing writer for California Lawyer Magazine. His non-fiction work has appeared in a wide variety of publications, ranging from The Nation and The Progressive to the Los Angeles Times, the L.A. Weekly and Los Angeles Magazine.

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